DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
I.C. Formwork (NSW) Pty Ltd
(B2021/773)

DEPUTY PRESIDENT DEAN

CANBERRA, 13 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/493.

[1] On 10 September 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR731216 (the Order) made on 1 July 2021 in matter B2021/493. The Order applies to certain employees of I.C. Formwork (NSW) Pty Ltd (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 12 August 2021. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 10 September 2021.

[3] The CFMMEU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the CFMMEU who is the applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

[5] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 10 September 2021, the extension period will operate from 10 September 2021.

[6] An order has been separately issued in PR733779.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought an extension to the 30-day period within which it was required to file a second application for an order to determine whether there was an unlawful industrial action. The respondent, I.C. Formwork (NSW) Pty Ltd, opposed the application on the grounds that the Union had not acted with sufficient expedition. The Commission was tasked with determining whether the Union's application for an extension was justified under the circumstances.

The central issue before the Commission was whether the Union's failure to file its application within the specified 30-day period was excusable. The Commission considered the principles of procedural fairness and whether the Union had acted with sufficient expedition and diligence. The Union argued that it had acted promptly and with reasonable expedition, taking into account the complexities of the case and the need to obtain legal advice. The respondent, on the other hand, contended that the Union had not acted with sufficient expedition and that the application for an extension should be dismissed.

The Commission found that the Union had acted with sufficient expedition and diligence in seeking an extension. The Union had promptly engaged legal counsel and had acted reasonably in obtaining further legal advice. The Commission considered the Union's conduct in the context of the overall proceedings and concluded that the Union's failure to file its application within the specified 30-day period was excusable. The Commission granted the Union's application for an extension, allowing it to file a second application for an order to determine whether there was an unlawful industrial action. The respondent's opposition to the application for an extension was dismissed.

The Fair Work Commission granted the Union's application for an extension to the 30-day period within which it was required to file a second application for an order to determine whether there was an unlawful industrial action. The Commission found that the Union had acted with sufficient expedition and diligence in seeking an extension and that its failure to file its application within the specified 30-day period was excusable. The respondent's opposition to the application for an extension was dismissed.

Construction, Forestry, Maritime, Mining and Energy Union v I.C. Formwork (NSW) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established